In 2016, Ohio became the fourteenth state to enact legislation denouncing the Boycott, Divestment, and Sanctions movement against Israel. Codified as § 9.76 of the Ohio Revised Code, this legislation prohibits any state agency from contracting with a company that boycotts Israel during the contractual period. While the constitutionality of § 9.76 has not been challenged, anti-BDS statutes passed by other state legislatures have faced First Amendment challenges. This Note argues that § 9.76 of the Ohio Revised Code complies with the First Amendment under the government speech doctrine. In 1991, the Supreme Court applied the government speech doctrine in Rust v. Sullivan to uphold a restriction on federal funding, stating that the government does not violate the First Amendment by restricting the recipient of federal funds from supporting a certain viewpoint. Several Supreme Court cases followed and expanded on this holding, further emphasizing that government speech is not subject to First Amendment scrutiny. Despite the constitutionality of § 9.76, this Note proposes that sole proprietors be removed from the legislation’s scope to prevent future litigation costs for Ohio.
Buckeyes Against the Boycott: Why Ohio's Law Opposing BDS is Protected Under the First Amendment,
69 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol69/iss1/9